VIA Times – August 2014 Issue Vital News, Vibrant Views for Asian Americans in Chicago & Midwest
By: Robert Gard
On July 11, 2014, USCIS published and released a new Policy Memorandum to provide additional operational guidance to USCIS adjudicators in their efforts to adjudicate H-1B petitions filed for Registered Nurses. This memo has been expected since USCIS conducted a “listening teleconference” with immigration lawyers on these issues several months ago, and the new Memo updates and replaces a previous H-1B/RN memo issued in 2002. While the new USCIS Memo adds some clarification, it does not alter the fundamental USCIS position that most Registered Nurse positions are NOT “specialty occupations” deserving of H-1B status. Even nurses who work in units where 100% of the nurse workforce holds Bachelors of Science in Nursing (BSN) have seen H-1B denials. These denial opinions dismiss the employer’s facts, and simply cite to the Occupational Outlook Handbook, which generally says that nursing positions do not require Bachelor’s degrees.
From the new USCIS Memo: “Background:
The H-1B visa classification allows a U.S. employer to petition for a temporary worker in a specialty occupation. Most registered nurse (RN) positions do not qualify as a specialty occupation because they do not normally require a U.S. bachelor’s or higher degree in nursing (or its equivalent) as the minimum for entry into those particular positions. There are some situations, however, where the petitioner may be able to show that a nursing position qualifies as a specialty occupation. For example, certain advanced practice registered nurse (APRN) positions normally require a U.S. bachelor’s or higher degree in a specific specialty as the minimum for entry into these particular positions. Approximately twelve years have passed since USCIS issued guidance on determining whether or not a nursing position is a specialty occupation. Because of changes in the nursing industry, USCIS is issuing this PM to provide updated guidance on the adjudication of H-1B petitions for nurses.
Guidance
I. Requirements for H-1B
Classification in a Specialty Occupation
The H-1B visa classification allows U.S. employers (petitioners) to petition to hire employees (beneficiaries) to work in specialty occupations. The term “specialty occupation” means an occupation that requires: (1) theoretical and practical application of a body of highly specialized knowledge; and, (2) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum requirement for entry into the occupation in the United States. To qualify as a specialty occupation, the regulations require that the petitioner demonstrate that the position meets at least one of the following criteria:
A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
The employer normally requires a degree or its equivalent for the position; or
The nature of the duties [is] so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
For an H-1B petition to be approved, the petitioner must establish that the offered position meets all of the applicable statutory and regulatory provisions. Registered Nurses Registered nurses generally do not qualify for H-1B classification. 5 This is because most RN positions do not normally require a U.S. bachelor’s or higher degree in nursing (or its equivalent) as the minimum for entry into these particular positions and thus are unable to qualify as specialty occupations. According to the U.S. Department of Labor’s Occupational Outlook Handbook (OOH), RNs usually take one of three education paths. Generally, licensed graduates of any of the three types of education programs (bachelor’s, associate’s, or diploma) qualify for entry-level RN positions. Although the ADN is still the most common degree people pursue to become an RN, nursing candidates are increasingly pursuing BSN degrees. In addition, RNs with an ADN or diploma may return to school to earn a bachelor’s degree through an ADN-to-BSN program. There are also master’s degree programs in nursing, combined bachelor’s and master’s programs, and programs for those who wish to enter the nursing profession but hold a bachelor’s degree in another field. In some cases, depending on the facts, some of these RNs may qualify for H-1B status: Genetics nurses Provide screening, counseling, and treatment of patients with genetic disorders, such as cystic fibrosis. Neonatology nurses Take care of newborn babies. Nephrology nurses Care for patients who have kidney-related health issues stemming from diabetes, high blood pressure, substance abuse, or other causes. Oncology nurses Combine their scientific knowledge, technical skills, and caring to help people living with cancer and their families throughout the cancer journey –from diagnosis and treatment to survivorship and endof- life care. Pediatric nurses Work with patients from infancy to young adulthood, giving developmental screenings, immunizations, and treating common illnesses. Peri-Operative (Operating Room) nurses Have a hands-on role, directly assisting surgeons during a procedure. For instance, they may help to suction the incision site or suture a wound. Rehabilitation nurses Care for patients with temporary or permanent disabilities. Other nurses Have jobs in which they do not work directly with patients, but must still have an active registered nurse license. Depending on the facts of the case, some of these RN positions may qualify as specialty occupations. Advanced Practice Registered Nurses Advanced practice registered nurse defines a level of nursing practice that utilizes extended and expanded skills, experience and knowledge in assessment, planning, implementation, diagnosis and evaluation of the care required. Positions that require nurses who are certified APRNs will generally be specialty occupations due to the advanced level of education and training required for certification. However, having a degree is not, by itself, sufficient for the position to qualify for H-1B classification. A critical factor remains whether a baccalaureate or higher degree in a specific specialty (or its equivalent) is normally required for these particular positions. It must be noted that a beneficiary’s credentials to perform a particular job are relevant only when the job is found to qualify as a specialty occupation. USCIS is required to follow longstanding legal standards and determine whether the proffered position qualifies as a specialty occupation, and whether a beneficiary is qualified for the position at the time the nonimmigrant visa petition is filed. Each state legislature and Board of Nursing decides on the title it will use for APRNs and regulates licensure, scope, and standards of practice. While the burden is on the petitioner to establish eligibility for the benefit sought, generally, the following is a non-exhaustive list of APRN occupations that may satisfy the requirements for a specialty Occupation:
• Certified Nurse-Midwife (CNM);
• Certified Clinical Nurse Specialist (CNS);
• Certified Nurse Practitioner (CNP); and
• Certified Registered Nurse Anesthetist (CRNA).”
The new Memorandum favorably recognizes that hospitals with magnet status, “indicates that the nursing workforce within an institution has attained a number of high standards relating to quality and standards of nursing practice” The Memorandum then buries in footnote 9 a very important fact: “For example, as of January 1, 2013, 100% of nurse managers of individual units/wards/clinics must have at least a baccalaureate degree in nursing upon submission of the Magnet application.” Quick Notes In Times of Rapidly Advancing Immigrant Visa Number Cut-Off Dates, Visa Petition Petitioners and Beneficiaries Must be Proactive, NOT Reactive In the last few months (July and August), the immigrant visa availability cut-off-dates for Philippine born beneficiaries of approved immigrant visa petitions have advanced significantly in several family based categories and in the employment based third preference category. Petitioners and beneficiaries are doing themselves a grave disservice if they don’t take a proactive stance and prepare themselves for the availability of an immigrant visa number for their given priority date. Being proactive entails personally keeping track of monthly movements in the “Visa Bulletin”, published monthly (the Visa Bulletin for August 2014 was published before mid-July 2014) by the Visa Office of the U.S. Department of State. Those petitioners and beneficiaries represented by legal counsel should not rely solely on their attorneys to keep them advised of significant movements in visa availability cut-offdates. Always keep your required paperwork and documentation in a safe and secure location, perhaps advising other family members of your assembled documentation. Review documentation requirements periodically with your legal counsel, as some requirements may change over time and as the State Department Foreign Affairs Manual undergoes changes or amendments. For employment based cases, both USCIS and Consular Posts abroad will generally require a current dated reaffirmation of your I-140 Petitioner’s offer of employment, showing a detailed full-time “permanent” job description & list of job requirements, and the rate of pay & benefits. If you have changed employment or transferred your H- 1B nonimmigrant status to a new/different employer since your PERM/I-140 petition was filed and approved, you will need to assess the viability of securing an employment offer re-verification from your former employer/petitioner. Just because you transferred your H-1B to a new employer does not mean that your I-140 petition has been transferred as well. You may find yourself in the position of having to complete the PERM and I-140 process again with your new employer before being able to secure permanent residency. Again, be proactive, and know your situation and options at all times. Being reactive instead of proactive often results in unnecessary delays and costs. White House Considering Plans to Expand Temporary Legal Status for More Immigrants The White House is moving forward on plans to expand deportation relief through executive action to roughly 5 million immigrants of the 11 million undocumented immigrants in the U.S. The plans could offer immigrants temporary legal status, similar to the Deferred Action for Childhood Arrivals (DACA) program. White House senior advisor Dan Pfeiffer said that executive action on immigration will happen at the end of the summer. Officials told the paper that there are two options being considered: One option would allow immigrants who are parents of U.S. citizens to apply for temporary legal status which would let them work legally in the U.S. Because children born in the country automatically receive U.S. citizenship, that option could affect about 5 million people, researchers estimate. A second option would be to allow temporary legal status for the parents of young people already granted deportation deferrals by the Obama administration. That would affect a smaller, but still sizable, number of people. COPYRIGHT BY AUTHOR — 2014
